United States Gypsum Co.

UNITED STATES GYPSUM COMPANY Glaze Department : Head mill loader Straight Line Department : Millroom assistant 901 Pressmen Inspectors Spray machine operators Straight line helpers Assistant spray machine Offbearers operators Laborers Press Department : Leadladies Pressmen-in-training Fettlers Trim offbearers and material Handpressmen handlers Pressmen Spray Department : Spray machine operator Spray department helpers Spray machine assistant Offbearers Hand spray operator Unloaders Feeders Kiln and Setter Repair Department : Leadmen Assistant kiln firemen Leadlady Kiln maintenance helpers Setter repair Setter repairs Firemen Grading and Sorting Department : Boxmakers Stock handler Packers Sorters Sorting department handlers Plant Clerks Receiving Clerk Stockroom Employee United States Gypsum Company and International Association of Machinists, AFL-CIO, Petitioner. Case No. 926-RC-1407. February 28, 1961 SUPPLEMENTAL DECISION, ORDER, AND DIRECTION OF SECOND ELECTION Pursuant to a Decision and Direction of Election 1 issued by the Board on June 15, 1960, an election by secret ballot was conducted on July 8, 1960, under the direction and supervision of the Regional Director for the Twenty-sixth Region among the employees in the 1 Not published in NLRB volumes. 130 NLRB No. 99. 902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD appropriate unit.' Following the election the Regional Director served upon the parties a tally of ballots which showed that of ap- proximately 279 eligible voters, 269 cast ballots, of which 127 were for, and 139 were against, the Petitioner, 2 ballots were challenged, and 1 ballot was void. Thereafter, the Petitioner filed timely objec- tions to conduct affecting the results of the election. In accordance with the Board's Rules and Regulations, Series 8, the Regional Director conducted an investigation of the objections and, on September 1, 1960, issued and duly served upon the parties his report on objections, in which he found that objections numbered 1 and 3 had merit and recommended that the election be set aside and a new election held. As to the remaining objections, he found them to be without merit and recommended that they be overruled. The Em- ployer filed timely exceptions to the Region Director's findings and recommendation, together with a brief in support of such exceptions. Upon the entire record in the case, the Board finds : 2 In its objections numbered 1 and 3, the Petitioner contends that the Employer exceeded the bounds of legitimate campaign propaganda by making certain false and misleading statements to employees which interfered with the freedom of choice in the election. The instant election was held between 6 and 8 a.m. and from 2 to 4 p.m. on July 8, 1960. The investigation revealed that on July 6, 1960, the Employer received two telegrams from the works manager of its New Brighton, New York, plant concerning the Company's bargaining relationship at that plant with the District Lodge of this Petitioner which is the certified union at that plant. The first telegram read as follows : MEN AT THIS USG PLANT NOW ADMIT THAT BRING- ING IN MACHINISTS WAS A COSTLY MISTAKE, NO LOCAL UNION IS RECOGNIZED AND NO EMPLOYEE IS AUTHORIZED TO BARGAIN OR SIGN A CONTRACT. THE INTERNATIONAL BOSS HAS ALL AUTHORITY AND CONTROL. HE MAKES ALL DECISIONS WITH- OUT CONSULTING EMPLOYEES. MEN WOULD LIKE 2 The unit as stipulated by the parties and found appropriate by the Board is: All production and maintenance employees at the Employer 's Insulation board, hardboard, hardboard products , and insulation tile manufacturing plant at Greenville , Mississippi, including press operators and quality leaders in press board department ; chipper operator leaders, commodity inspectors , and fabricating leaders in finishing department ; mainte- nance leaders ; and truckdrivers , but excluding watchmen , testers, laboratory technicians, quality leaders in quality department , and other technical and professional employees ; office clerical employees, storeroom clerks, forestry department employees , commodity auditors, and production schedulers , head boiler operator, and relief foreman In yard and board mill department ; relief foreman in press board department ; relief foreman in finishing department ; acoustical operating leaders , hardboard trimmer operators, big trimmer operators , head saw filer, and tile machine operators in finishing department; mechanical loading leaders and relief mechanical loading leader in warehouse and shipping department ; shift foreman , and all other supervisors as defined in the Act. 2In the absence of exceptions thereto, we adopt pro forma the Regional Director's find- ings and recommendations that objections numbered 2 , 4, 5, 6, and 7 be overruled and hereby overrule them. UNITED STATES GYPSUM COMPANY 903 WAGE INCREASE BUT UNION SAYS NO. MACHIN- ISTS HAVE PREVENTED WAGE INCREASE HERE FOR 19 MONTHS. The second telegram stated : UNION REPRESENTATIVES DID NOT SHOW UP FOR SCHEDULED MEETING TODAY. I DO NOT KNOW THE REASON AND WILL WAIT UNTIL SOLAR CON- TACTS ME REGARDING ANOTHER MEETING. Copies of the above telegrams were distributed to each of the Em- ployer's supervisors on July 6, and the information contained therein was used in conversations with employees urging them to vote against the Petitioner. The Greenville Works manager read the contents of the telegrams and commented thereon to at least one group of approxi- mately 45 employees on the afternoon of July 6, 1960. The telegrams were also shown to various employees, and copies were posted on the plant's bulletin boards on July 7, the day before the election.4 The Petitioner's representative stated that the use of the above telegrams was not brought to his attention until the night before the election. The Regional Director found that the first telegram, except for the first sentence ("men at this USG plant now admit that bringing in machinists was a costly mistake"),' contained gross misstatements, misleading statements, and deliberate misrepresentations, all calcu- lated to convey to the Greenville employees the impression that the employees at the New Brighton plant had no voice whatsoever in the negotiations and that the Union had willfully prevented the Em- ployer from granting raises at the latter plant. He further found that theinformation was within the special knowledge of the Em- ployer because of its participation in the New Brighton negotiations and was of a nature that the employees themselves could not evaluate. He also found that the statements were made by a party whom the employees could reasonably consider to be in an authoritative position to know the true facts. With respect to the second telegram, the Regional Director found that its use, considered in context with the contents of the first telegram and the simultaneous posting and circu- lation, was to bolter and to emphasize the misrepresentations of the first telegram. Accordingly, the Regional Director concluded that the Employer's use of the two telegrams constituted improper elec- tion propaganda which prevented the exercise of a free choice by the employees in the election of their bargaining representative, and he recommended that these objections be sustained, the election set aside, and a new election directed. * The Employer has not disputed the accuracy of the above facts found by the Regional Director and summarized herein. 5 As no exceptions were filed to this finding as to the first sentence, we adopt the finding pro forma. '904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The general rules which the Board applies to election campaigns are well settled and not in dispute. Exaggerations, inaccuracies, partial truths, name calling, and falsehoods, while not condoned, may be excused as legitimate campaign propaganda provided they are not so misleading as to prevent the exercise of a free choice by employees in the election of their bargaining representative.' Absent threats or other elements of intimidation, the Board will not undertake to police or censor the propaganda material used by the participants in a Board election, and leaves it to the opposing party to correct, and to the employees themselves to evaluate, such utterances. However, when one of the parties deliberately misstates material facts which are within its special knowledge, under such circumstances that the other party or parties cannot learn about them in time to point out the misstatements, and the employees themselves lack the independent knowledge to make possible a proper evaluation of the misstatements, the Board will find that the bounds of legitimate campaign propa- ganda have been exceeded and will set aside an election.7 The Employer contends, in essence, that the Regional Director im- properly applied these rules to the facts before him. Specifically, it argues that the use of the telegrams was legitimate campaign propa- ganda because (1) the signer of the telegram believed some of the statements to be true and they were merely expressions of opinion, (2) the facts were more within the special knowledge of the Petitioner than of the Employer, (3) the statements related to issues raised and discussed during the campaign and must be considered in the context of the campaign, (4) the Petitioner had ample opportunity to answer the statements and did so, (5) the Greenville employees had experi- enced organizational drives, electioneering, and bargaining, and hence were fully competent to evaluate the truth or falsity of the statements, and (6) the second telegram must be considered separately rather than in conjunction with the first. We find each of these contentions to be without merit. In support of the truth of the first telegram, the New Brighton Works manager supplied an affidavit in which he asserted that the representative of District Lodge No. 15, the certified union, had stated that he alone was authorized to negotiate and sign a contract and he made all decisions without consulting the employees. The Employer contends that the telegram therefore stated the facts as the works manager believed them to be. But certain of the statements so distort the actual facts as to be misleading because the employees could not properly evaluate them unless the Petitioner had an opportunity to point out the misstatements. Thus, the statement that "['the Inter- "The Gummed Products Co., 112 NLRB 1092. 7 The Cleveland Trencher Company, 130 NLRB 600; Kawneer Company, 119 NLRB 1460; Thomas Gouzoule, et at., d/b/a The Calitbyne Company, 117 NLRB 1026, 1028. UNITED STATES GYPSUM COMPANY 905 national boss'] makes all decisions without consulting employees" is contradicted by the aforesaid affidavit of the New Brighton Works manager which admits that employees sat in the bargaining sessions but "had 'little or nothing to say." 8 The fact of even limited employee participation was not mentioned in any of the campaign literature quoted by the Employer in its brief and was presumably unknown to the Greenville employees. Knowledge of this fact was essential in order for them to make a proper evaluation of the statement. How- ever, even assuming the telegram stated the facts as they were honestly believed to be, the statements are not couched in terms of an expression of opinion and, contrary to the Employer's view, are clearly not recog- nizable as such on their face. In this context, the effect on the em- ployees of an unintentional misrepresentation would be no different from that of a deliberate misstatement.' We also agree with the Regional Director that the last two sentences were deliberate mis- representations. Indeed, the Employer has not attempted to argue that they were true, but merely that they were recognizable by the employees as campaign propaganda. For the reasons set forth below, we do not believe that the employees could recognize them as such. We disagree that the facts were more within the special knowledge of the Petitioner than of the Employer and that the Petitioner had ample opportunity to answer. The assertions are as to factual events at a location far removed from the Greenville plant. To apply a theory of constructive knowledge or infer actual knowledge by Peti- tioner's representatives in Greenville under these circumstances would be unrealistic. In any event, we find that it is immaterial which party had special or exclusive knowledge of the facts. The Board will set aside elections because of material misrepresentations of fact "where (1) the employees would tend to give particular weight to the misrepresentation because it came from a party that . . . was in an authoritative position to know the true facts, and (2) no other party had sufficient opportunity to correct the misrepresentation before the election." 10 The Board has also set aside an election because the dis- tribution of misstatements concerning a matter which the employees could not evaluate independently on the 2 days preceding the election gave the Employer insufficient time to learn of and point out the mis- statements.ll Because of the position of the New Brighton Works manager and his participation in the negotiations at that plant, we find that he was a party in an authoritative position to know the true facts and that the employees would tend to give particular weight'to his misrepresentations. And the distribution, discussion, and posting 8 Also, members of the negotiating committee at the New Brighton plant submitted a signed statement to the effect that they have participated in the negotiations. e Kawneer Company, supra, footnote 7. io Celanese Corporation of America, 121 NLRB 303, 307. "Kawneer Company, supra. 906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the telegrams on the 2 days before the election gave the Petitioner insufficient time to learn of and point out the misstatements 12 While a party is not necessarily entitled to an opportunity to reply to all ,campaign propaganda, the Petitioner was entitled to such an oppor- tunity under the circumstances of this case. The Employer's prime contention is that the first telegram should be considered in the con- text of the election campaign and the attendant propaganda. We agree. However, we do not agree that when so considered the statements of the first telegram were merely repetitious and under- standable or that the Petitioner's previous denials of the Employer's prognostications were sufficient answer and permitted full and proper evaluation by the employees. In this connection the Regional Director found that there was some evidence that during the campaign the Employer had mentioned its contentions that the International would conduct any contract negotiations, but that this issue did not assume a dominant role in the Employer's campaign until the receipt of the July 6 telegram. However, even if the Employer is correct and em- ployee participation was a dominant issue, we find a vast difference between the predictions made prior to July 6 and the statements of fact contained in the July 6 telegram. In fact, such assertions of fact following on the heels of the Employer's forecast would, in our opin- ion, be given even greater weight by the employees.13 Under these circumstances, the previous contrary predictions by the Petitioner can- not be said to take the place of an opportunity to deny the asserted facts. Nor do we believe that such prior campaign predictions by the parties enabled the employees properly to evaluate the facts reported in the first July 6 telegram. The Employer's assertions as to the experience of the Greenville employees in organizational drives, electioneering, and bargaining are completely unsupported by any factual allegations and hence must be rejected. We note, however, that the Board's records reveal no prior petitions involving the employees at the Greenville plant during the past 6 or 7 years. The experience of employees at other plants of this Employer cannot be attributed to the employees at the Greenville plant. 12 The Lundy Packing Company, 124 NLRB 905 , Is clearly distinguishable , in that there the last-minute misstatements had also been made 2 months before the election, which permitted the employees ample time to make inquiries if they wished. Here, on the contrary , no such adequate time was available 13 Cf. The Gummed Products Company, 112 NLRB 1092, 1094. The cases relied on by the Employer in support of its position that In context of the campaign the telegram was permissible propaganda are clearly distinguishable . In Universal Producing Company, 123 NLRB 548, the employer's statements were found to be an expression of legal posi- tion as to future bargaining In Celanese Cot poration of America, supra, the union's last-minute campaign release was merely a repetition of its prior claims, which had been answered by the company, but asserted additional matters of the same nature. In Horders Incorporated, 114 NLRB 751, there had been an actual denial by the employer and the union's misstatements were not repeated thereafter. UNITED STATES GYPSUM COMPANY 907 The Employer's final contention, that the second telegram must be considered separately , is also rejected. This telegram, like the first, should be considered in the context of the events . When so viewed, it is clear that the Regional Director's findings with respect to its im- proper use were correct, and we therefore adopt them. In view of the foregoing , we find that the Employer's use of its tele- grams exceeded the bounds of legitimate campaign propaganda and lowered the standards of campaigning to a level which impaired the free and untrammeled expression of choice by the employees. Ac- cordingly, we shall order that the election of July 8, 1960, be set aside, and shall direct that a new election be held. [The Board set aside the election conducted therein on July 8, 1960.1 [Text of Direction of Second Election omitted from publication.] CHAIRMAN LEEDGM and MEMBER RoDGERS, dissenting : We believe that the majority has misapplied existing precedents to the facts in this case. The main thrust of the first telegram in question 14 is the charge that during negotiations for a contract at another plant of the Employer, the "International Boss," the Peti- tioner herein, had usurped the bargaining authority to the detriment of the employees. Such a charge, involving a matter about which both the Employer and the Petitioner had equal knowledge, constitutes an expression of opinion or ultimate conclusion by the Employer as to its version of the negotiations between the Petitioner, together with its Local, and Employer. That this version may have differed from that of the Petitioner, or that a different conclusion might have been reached, affords no basis for setting aside election, for surely on the basis of form and content the employees could readily evaluate the telegram as mere self-serving propaganda which could reasonably be expected in a hotly contested election.15 Moreover, we note that the discussion of the telegram with the employees commenced 2 days before the election and it was posted on the bulletin board the day before. Its content was therefore a matter of common knowledge throughout the plant. It is inconceivable that the petitioner, which had 127 adherents in the plant, was not informed of the telegram until the night before the election. But even so, there was still opportunity to counter the Employer's telegram, as the Peti- tioner, a party to the negotiations, had all relevant information on 14 The second telegram also relied upon by the majority is, in our opinion, obviously innocuous. 15 In our opinion , the case of The Cleveland Trencher Company, 130 NLRB 600, relied upon by the majority to support its decision, is factually distinguishable . That case in- volved misrepresentations as to matters within the special knowledge solely of the party making them, and the Board ( Members Jenkins and Fanning not participating ) concluded that the employees were unable to evaluate such misrepresentations . Here, the matters allegedly misrepresented were within the special knowledge of both parties to the proceeding. 908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hand. Its failure to act convinces us that it then regarded the tele- gram as not being a material factor in the election and that it changed its mind only after the adverse election results were made known. For these reasons we would overrule the objections and certify the results of the election. Lake Huron Broadcasting Corporation and National Association of Broadcast Employees and Technicians , AFL-CIO, Peti- tioner. Case No. 7-RC-4639. February 28, 1961 DECISION AND ORDER Pursuant to a stipulation for certification upon consent election, an election by secret ballot was conducted on November 17, 1960, under the direction and supervision of the Regional Director for the Seventh Region among the employees in the agreed unit. Upon the conclusion of the balloting, the parties were furnished with a tally of ballots which showed that of approximately 15 eligible voters, 7 cast valid ballots for, and 7 against, the Petitioner, and 1 cast a challenged ballot. The challenged ballot is sufficient to affect the election results. After an investigation, the Regional Director issued his report on challenged ballot, in which he recommended that the challenge be overruled and the ballot be opened and counted. The Employer filed timely exceptions to the Regional Director's report. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Members Rodgers, Fanning, and Kimball]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain em- ployees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9(c)(1) and Section 2 (6) and (7) of the Act. 4. The following employees, as stipulated by the parties, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act : All radio and television engineers and television production per- sonnel at the Employer's radio transmitter at 1620 Gable Road, and its radio and television transmitter at 1650 Treanor Street, Bridge- port Township, Michigan, including film and cameramen, but exclud- ing on-the-air personnel, clerical employees, continuity writers, sales 130 NLRB No. 105.